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Samuel Griffith Society Proceedings Vol 12 Appendix III: National Sovereignty versus Internationalism: The Importance of Repealability Professor Kenneth Minogue The Coming Assassination of National Sovereignty Recent events have dramatised a new trend in the way mankind arranges its affairs. In 1999, for example, the NATO alliance waged something called a “humanitarian war” against Yugoslavia. As a result, the province of Kosovo was detached from Yugoslav (in effect Serbian) control and occupied by international agencies. Back in 1945, when the United Nations was being established, the inviolability of national sovereignty had been accepted as a necessary condition of international cooperation. Without that guarantee, sovereign states would not even have begun to cooperate in adumbrating a world order. Even then, however, the institution of sovereignty, which is the abstract concept signifying the fact that nation states are independent of any superior legislative authority, had long been under attack. Critics regarded independence as the condition that made possible aggressive war and the violation of rights. By 1999, however, the higher media visibility of brutal oppression, combined with rapidly changing opinions about international law, had brought Western states to the point where violations of individual rights in Kosovo became a ground for military intervention. The significance of this evolution is in no way diminished by the fact that the whole event has turned out to be far short of a resounding moral triumph. Political divisions prevented the war being waged under the rubric of the United Nations, which is why the inappropriate umbrella of NATO was used. Some umbrella there had to be, lest “humanitarian intervention” should seem indistinguishable from old fashioned imperialist aggression. The lack of popular enthusiasm for the project in the participating countries led to a military campaign being conducted by remote aerial warfare. None of these democracies wanted to risk their soldiers becoming casualties. And the arrival of U.N. agencies, once the war itself had ended, has turned out to be very far from initiating a reign of justice in Kosovo. It will take the long perspectives of history to understand this complex event, but there is no doubt that a new doctrine about the relation between sovereignty and human rights had at last been put into practice. Kosovo was not, however, the only straw in the wind. The detention of General Pinochet in Great Britain, as lawyers from Spain, Belgium and Switzerland sought to extradite him to stand trial for alleged war crimes, was another case of the long arm of something a little like international legality flexing its muscles. And in Australia in early 2000, uproar followed the enacting of mandatory sentencing for crimes in Western Australia and the Northern Territory. Some Australians found this practice (as one columnist put it in The Sydney Morning Herald of 20 February, 2000) “barbaric”. Here, as in the earlier case of the Aboriginal “stolen children” issue, opponents and critics of the Australian federal government sought to institutionalise the question. Were human rights being violated? Was mandatory sentencing in conflict with the rule of law? Critics appealed over the head of the governments involved to the United Nations Commissioner for Human Rights, Mary Robinson. I am not concerned with the substance of any of these issues. What I do want to bring out is the underlying issue, which I take to be the project of imposing a kind of revived ius gentium (with teeth, as it were) on the current practice of national sovereignty. This is an area in which a political theorist needs to tread carefully, since it involves issues of international law. On the other hand, international law consists of a great variety of rules having very variable degrees of authority. Much of it, in fact, seems to be little else except political theory dressed in legal garb. Hence I shall advance, for purposes of clarification, a bold and extreme thesis about what is going on: namely, that assassins are gathering around the very idea of national sovereignty. My argument can thus borrow the familiar structure of a mystery story, involving a murderer and a victim. The victim is the sovereign nation-state, the assassins group themselves together as a set of self-described humanitarians. Let us take each of these figures in turn. What Makes the Sovereign State Unique ? The victim is “sovereignty”, a term referring to the absolute power and authority disposed of by the rulers of a modern state as they regulate the public affairs of their peoples. The Netherlands, for example, is a civil association of individuals living on a determinate territory, an association which has generated a government that makes law and implements policies for the benefit of its subjects. In 1940, the German army marched into the Netherlands and controlled the country until the Germans were driven out in 1945, but the Dutch government retained legitimacy in exile in London. Sovereignty thus involves both power and authority. It expresses the independence of a set of people able to rule themselves, people who will not tolerate any superior exercising power over them without consent.1 Sovereignty is to be conceived of as the single concentrated authority emanating from a Constitution. The contrast is with the arrangements of mediaeval Europe, in which authority was dispersed between monarchs, the Catholic Church, nobles, and sometimes also relatively independent towns. Historically, sovereignty emerged in the later Middles Ages when governments, mostly monarchies, extinguished their partners in government and concentrated all authority in their own hands. We may observe two things about this immensely complicated process. The first is that it responded in part to a growing sense of individualism among European peoples. Such individualism was most evident in the towns, which is why these events are sometimes understood as being a “bourgeois revolution”. The second point is that in England particularly (the case most relevant to Australia, of course) the absolute power of sovereignty could only be achieved in a process of national integration. In other European countries, sovereign power accrued above all to the monarch. It was the solution to the problem of internal dissension, for (as Hobbes remarked) it takes two to make a conflict. In England under the Tudors, this power belonged to the King-in- Parliament, and in the course of the next century it became clear that Parliament was the decisive element in this mix. Part of the reason for this was that, while other European states tended to be articulated into “estates” of the realm, the English could plausibly claim to constitute a single people. The House of Commons never represented any notional “third estate”. It was an assembly speaking for a much more complex society. Sovereignty is the abstract essence of something called the “nation-state”, which is, in some ways, an absurd expression. Britain, for example, contains at least four clearly articulated nations: Welsh, Scots and Irish along with the English (and, some would add, the Cornish, and perhaps even other regionally distinct areas). Some of them periodically generate a “nationalism”, which is to say a political movement demanding that whatever recognises itself as a nation ought to have the sovereign prerogative of statehood. The point about “nation states” (such as Britain or France, or Australia), however, is that they seldom or never consist just of one “nation”. They are all, in a technical sense, empires. But in times of crisis, they are capable of generating a passionate unity (overriding the attachments of the component parts) which resembles the unity of nations themselves. This is sometimes, misleadingly, called “nationalism”, but is actually what we generally recognise as patriotism. It is a common but serious mistake in politics to confuse patriotism with nationalism. It may well be this muddle which has given currency to the mistake of thinking that states have only recently become “multicultural”. Such a mistake is popular as propaganda for the project of incorporating “minorities” as the units out of which states are built. It is a project for subjecting democratic civil societies to a tyranny of corporate privilege. The European nation-state was a notable invention. It expressed the emergence of a new kind of human being altogether – an individual, which is to say, a human being accustomed to pursuing his own desires and inclinations in compliance with the abstract rules of law. Just as the classical Greeks developed the idea of the citizen, which is to say a city dweller who participated in collective self-rule, so modern Europe brought forth the individual, and sovereignty was its political correlate. In such a state, fellow subjects might not be brothers, or comrades, but they were people who in some sense spoke the same language, and with whom each could co-operate with any other in freely chosen enterprises. Whereas in most other forms of social organisation, such as the tribe or the despotism, co-operation was only possible with those who shared one’s religion, clanhood or ethnicity, European individuals found it easy to co-operate with each other. In such societies, as Hegel rightly put it, “all were free”, and the resulting association of these individuals gave Europeans’ society a tensile strength which allowed them in time to spread technology and institutions that came to dominate the world. Sovereign states were so successful, in fact, that by the 20th Century all the peoples of the world had mimicked the nation-state form of organisation. They all had Presidents, Parliaments, judges, elections, etc., or at least the appearance of these things. Often, in fact, these states were the merest caricatures of the constitutionally articulated and generally democratic states of the West. What immediately fascinated non-Western rulers was the sheer power that sovereign nationhood could confer upon rulers.
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